Ethics

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"belief" or "believes"

The person involved actually supposed the fact in question to be true

May be inferred from circumstances

confirmed in writing

informed consent that is given in writing by the person or a writing that a L promptly transmits to the person confirming an oral informed consent

obtained or transmitted either at the time of the informed consent or w/in a reasonable time thereafter

"firm" or "law firm"

L(s) in a law partnership, prof corporation, sole proprietorship, or other association authorized to practice law

Ls employed in a legal services organization or the legal dept of a corp or other organization

"fraud" or "fraudulent"

conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to decieve

"informed consent"

agreement by a person to a proposed course of conduct after the L has communicated adequate info and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct

"knowingly," "known," or "knows"

actual knowledge of the fact in question

knowledge may be inferred from circumstances

"partner"

member of a partnership, a shareholder in a law firm organized as a prof corp, or a member of an association authorized to practice law

"reasonable" or "reasonably"

conduct of reasonably prudent and competent L

"reasonable belief" or "reasonably believes"

L believes the matter in question and that the circumstances are such that the belief is reasonable

"reasonably should know"

L of reasonable prudence and competence would ascertain the matter in question

"screened"

isolation of a L from any participation in a matter thru the timely imposition of procedures w/in a firm that are reasonably adquate under the circumstances to protect info that the isolated L is obligated to protect under RPC or other law

"substantial"

material matter of clear and weighty importance

"tribunal"

court, an arbitrator in a binding arbitration proceeding or legislative body, admin agency or other body acting in an adjudicative capacity

"acting in adjudicative capacity"

a neutral official, after the presentation of evidence or legal argument by a party(s), will render a binding legal judgment directly affecting a party's interests in a particular matter

"writing" or "written"

tangible or electronic record of a communication or rep, including handwriting, typewriting, printing, photostating, photography, audio or vidorecording and email

"signed writing"

includes an electronic sound, symbol, or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing

generally permissible admission requirements

1. education

2. testing

3. character and fitness

generally impermissible admission requirements

1. citizenship

2. residency

3. political beliefs

4. protections afforded under American's with Disabilities Act

Permissible to deny admission based on political beliefs when:

1. applicant doesn't swear allegiance to C and to uphold US laws

2. applicant is an active participant in assoc known to be engaged in illegal activity and evidence of applicant's specific intent to further those activities

Character & Fitness has broad scope including

1. illegal use of drugs

2. criminal conduct

3. civil judgments

4. debt & fiscal irresponsibility

5. plagarism

6. mental health

Regulation of Lawyers model rules

8.1 - Bar Admission and Disciplinary Matters

Lawyer Liability model rules

8.3 - Reporting Prof misconduct

8.4 - misconduct

5.1 - responsibilities of partner or supervisory L

5.2 - responsibilities of subordinate L

5.3 - responsibilities regarding nonL assistant

Duty to Protect Client Confidences model rules

1.6 - confidentiality of information

1.2 - scope of rep & allocation of authority b/t C and L

4.1 - truthfulness in statements of others

3.3 - candor toward the tribunal

1.8 - CoI: current C; specific rules

1.16 - declining or terminating rep

L/C relationship rules

1.1 - competence

1.2 - scope of rep & allocation of authority b/t C and L

1.3 - diligence

1.4 - communication

1.14 - C with diminished capacity

1.16 - declining or terminating rep

1.18 - duties to prosepective C

2.1 - advisor

3.3 - candor toward tribunal

4.1 - truthfulness of statements of others

5.4 - prof independence of L

6.1 - voluntary pro bono publico service

6.2 - accepting appointments

8.4 - misconduct

L duties to courts rules

3.1 - meritorious claims and contentions

3.3 - candor toward tribunal

3.4 - fairness to opposing party and counsel

3.5 - impartiality and decorum of the tribunal

3.6 - trial publicity

3.7 - L as W

3.9 - advocate in nonadjudicative proceedings

4.1 - truthfulness in statements of others

8.4 - misconduct

L duties to adversaries and third persons rules

1.6 - confidentiality of info

4.1 - truthfulness in statements of others

4.2 - communication with person rep by counsel

4.3 - dealing with unrepresented person

4.4 - respect for rights of third persons

8.4 - misconduct

conflicts of interest rules

1.7 - current clients

1.8 - current C specific rules

1.9 - former C

1.10 - imputation of CoI; General rule

1.13 - organization as C

1.16 - declining or terminating rep

1.18 - prospective C

conflicts b/t L and C

1.5 - fees

1.7 - current C

1.8 - current C, specific rules

1.10 - imputation of CoI general rule

1.15 - safekeeping property

5.4 - prof independence of L

7.1 - communication concerning L services

7.2 - advertising

CoI General Principles

1.7 - current C

1.8 - current C, specific rules

1.10 - general rule

CoI in particular practice settings rules

1.13- organization as C

CoI former C rules

1.9 - duties to former C

1.10 - general rule

CoI gov L rules

1.11 - special CoI for former and current gov officers and EEs

3.8 - special responsibilities of a prosecutor

judicial conduct rules

1.12 - former J, arbitrator, mediator, or other 3p neutral

7.6 - political contributions to obtain legal engagements or appointments by J

8.2 - judicial and legal officials

advertising and solicitation rules

5.4 - prof independence of L

5.7 - responsibilities regarding law-related services

7.1 - communication concerning a L's services

7.2 - advertising

7.3 - direct contact with prospective C

7.4 - communication of fields of practice and specialization

7.5 - firm names and letterhead

NCGS 84-28 --> Discipline and Disbarrment actions

1. admonition

2. reprimand

3. censure

4. suspension

5. disbarrment

"admonition"

written form discipline involved where L committed minor violation of RPC

"reprimand"

written form; caused harm or potential harm to C, admin of justice, profession, or members of public

neglect

"censure"

written form; significant harm resulting from violating 1 or more RPC

intentional, gross negligence, fraud

"suspension"

period no longer than 5 yrs

may be stayed upon reasonable conditions to which L consents

disbarrment

take away law license

may ask to be readmitted after 5 yrs

Standard for reporting misconduct by other L

those violations which raise a substantial question as to that L's honesty, trustworthiness, or fitness as a L in other respects

objective standard; mroe than mere suspicion

law firm rule

holding an entire law firm responsible for L misconduct, even when an indvl culprit can be identified

options for L who is told to do something he thinks is unethical

1. accept the directions from superior

2. argue with superior

3. discuss prob with diff superior

4. do more research/investigation to clarify prob

5. ask to be relieved from work on the matter

6. resign

elements for tort claim of legal malpractice

1. L owed duty to P

2. L failed to exercise reasonable competence and diligence normally exercised by L in similar circums; and

3. breach of duty caused harm to P

top 10 list triggering prof liability

1. ignores CoI

2. sue FC for unpaid fee

3. accept any C and any matter that comes along

4. "do business" with your C

5. practice outside your area of expertise

6. go overboard in opening branch offices and making lateral hires

7. leave partner peer review to other firms

8. ignore a potential claim and rep yourself in a prof liability dispute

9. settle matter w/o written authorization from C

10. fail to communicate with C

fiduciary duties owed to C

1. safeguarding C confidences and property

2. avoiding impermissible CoI

3. adequately informing C

4. following instructions of the C

5. not employing adversley to the C powers arising from the C/L relationship

liability not covered by insurance

1. intentional acts

2. orders of restitution of legal fees, fines, or penalties

3. orders to pay punitive damages

4. conduct of L in other roles

5. conduct of L who rep businesses of which they are also part owner

6. intra-firm disputes

CI shall not be revealed unless:

1. informed consent

2. impliedly authorized

3. disclosure permitted by 1.6(b)

info that must be protected as confidential

1. all info relating to matter on which L is rep C except info that is generally known

2. personal info relating to the C that the C wouldn't want disclosed

3. info learned from C and learned from interviews, docs, photos, observations, or other sources

4. infor acquired before rep begins and after rep ends

5. notes/memos that L creates relating to the matter

purpose of rule 1.6 (confidential information)

to facilitate open communication b/t L and C

1.6(b) - L may reveal CI to extent the L reasonably believes nec

1. to prevent reasonably certain death or substantial bodily harm

2. to prevent a crime or faud involving the use of L services

3. to prevent, mitigate, or rectify substantial injury to $ interests or property of 3P using L services

4. to secure legal advice

5. to establish a claim or defense

6. to comply with law or court order

L may reveal C criminal or fraudulent conduct whether it is past, present, or future if:

1. there is reasonable certainty that C conduct will result in substantial $ or property injury of another person;

2. C is using or has used L services in committing the act; AND

3. purpose for revealing CI is to prevent the criminal or fraudulent act or to prevent, mitigate, or rectify the harm resulting from the act

L Roles

1. representative

2. officer of legal system

3. public citizen with special responsibility

NC Rule - A/C privilege

1. A/C relationship existed at time of communication

2. comm made in confidence

3. comm relates to matter about which L is being prof consulted

4. comm made in course of giving/seeking legal advice for proper purpose (although litigation need not be contemplated)

5. C hasn't waived privilege

NC exceptions to A/C privilege

1. dead C

2. comm regarding 3P

3. no exposure to: (1) civil/criminal liability or (2) harm to reputation/harm to surviving family

general A/C privilege

1. comm must be made b/t privileged persons

2. in confidence

3. for purpose of seeking/obtaining legal advice

competence factors

1. relative complexity and specialized nature of the matter

2. L general experience

3. L training and experience in the field in question

4. preparation and study the L is able to give the matter

5. feasibility of referring matter to L with established competence in the field in quesiton

inherent powers doctrine

Courts claim that they have the inherent authority to regulate the conduct of lawyers as a matter of CL b/c the courts need the authority to govern the conduct of those who appear b4 them

rule 8.1

no lying, no half-truths, and open your mail and respond

senior partner may be subject for discipline for conduct of subordinate if

1. ordered the conduct; or

2. knew about conduct and did nothing

factors for reasonably adequate informed consent

1. whether C or other person is experienced in legal matters generally

2. whether C or other person is experienced in making the type of decisions involved

3. whether C or other person is indpt rep by other L in giving informed consent

C has right to make 4 specific decisions

1. whether to testify

2. whether to settle or refuse to settle

3. whether to waive jury trial

4. whether to plea

1.16 - L must withdraw if:

1. C demands L engage in illegal or unethical conduct

2. L physical/mental condition materially impairs L ability to rep C

3. L is discharged

1.16 - L may withdraw if

1. L wants to terminate and doing so not materially adverse to C

2. Matters in litigation with permission of the court

3. C stops paying fees and L has warned C that nonpayment will lead to w/drawl

4. Case imposes an unreasonable $ burden on L

5. C won’t cooperate

6. C has misused L services in the past

7. C insists on taking action that L considers repugnant or with which the L has fundamental disagreement

8. C assents to termination

9. C wants to pursue bad faith claim

10. Any other good cause

L may reveal CI in self defense...

·To establish a claim against a C for unpaid fees

·To defend against a claim of malpractice or other claim of civil liability against the L

·To defend against a disciplinary proceeding

To defend against a criminal charge

legal malpractice elements

1. Existence of L/C relationship

2. ∆ acted negligently or in breach of K

3. Such acts were the proximate cause of the π’s damages

4. But for the ∆’s conduct the π would have been successful in the prosecution of their case

2 elements of ineffective counsel

1. deficiency

2. prejudice

mental competence of C factors

C ability to articulate reasoning leading to a decision

Variability of state of mind and ability to appreciate consequences of a decision

Substantive fairness of a decision

Consistency of a decision with the known long-term commitments and values of the C

protective measures - mental competence of C

Guardianship is legitimate in extreme cases

Reliance on family may be appropriate

Unilateral usurpation of C autonomy is never appropriate except in emergencies

Noncoercive persuasion is justified in less extreme cases

hired gun approach

L who pursues every possible tactic on behalf of C

public spirited L

L who believe that their duties as officers of the court are as impt as their duties to their C…other values should override their C goals

protecting the integrity of the system

1. duty to prevent abuse of the system

2. duty of candor to tribunals

duty to prevent abuse to the system involves

1. no frivilous lawsuits (3.1)

2. expedite litigation (3.2)

3. no improper influence on J and no conduct intended to disrepute the tribunal (3.5)

concealment of evidence is unlawful if

1. Conduct violates crim obstruction of justice statute

2. Conduct violates court order

3. Failure to comply with discovery rules

4. Conduct would constitute a tort

2 reasons behind general rule that L may not serve as W

1. Seeks to avoid the situation that could prejudice the tribunal and the opposing party

2. Seeks to avoid a CoI b/t the L and C b/c a L who has unprivileged, PK of a case might give testimony that is adverse to C

L may serve as a W if

Undisputed facts

Relates to nature/value of legal services

Disqualification would result in substantial hardship

P have specific obligation to see

(1) that the ∆ is accorded procedural justice,

(2) that guilt is decided upon the basis of sufficient evidence, and

(3) that special precautions are taken to prevent and to rectify the conviction of innocent persons

L have a duty to

1. Exercise indpt legal judgment (rule 5.4)

2. Be loyal to their C

3. Be competent and diligent

2 types of CoI

1. directly adverse

2. material limitation

informed consent involves

1. L conveys info sufficient for C to understand

2. L explains alternatives

3. in writing (for some types)

if someone other than C is paying for legal services then

1. C must consent; and

2. rep can't be interferred with by paying party

CoI may be waived if

1. L reasonably believes he can provide competent & diligent rep;

2. Not prohibited by law;

3. No assertion of claim by one C against another C in the same litigation or some other proceeding before tribunal; AND

4. Informed consent

deciding when to report factors - 1.13 orgs

Seriousness of the violation and its consequences

Responsibility in the org and apparent motivation of the person involved

Polices of the org concerning such matters

Any other relevant considerations

types of fee agreements

Flat fee

Hourly billing (# hrs x rate)

Proportional fee

Contingent fee (if this then that)

Project pricing (more like a la carte)

Retainers

true retainer

no present legal probs but seek to retain L for x months in case there are legal probs

advanced payment

billed off of and goes into trust account b/c haven’t earned it yet

contingent fee requirements

Must be in writing

Contingency included

% and any contingency caps

Whether expenses will be deducted b4 or after L cut

CF reasonableness factors

Likelihood that contingency will occur

Likely recovery if contingency occurs

Whether contingency will occur quickly

Amount of work involved to achieve recovery

judges are disqualified when

J has personal knowledge of disputed evidentiary facts

J served as a L or J in the matter

J has financial interest in the case (includes family)

J or family member is

o A party to the case

o L in the case

o Has more than a de minimus interest in the caseIs likely to be a material W

on the bench

1. J shall comply with all constitutional, statutory, and procedural law